towards him, they could not have been successfully impeached upon the ground of inadequacy of consideration, or upon any ground appearing in the evidence in this cause." His Lordship then stated the test deducible from the cases, as to whether a solicitor is to be regarded as being the professional adviser of his client at the time of a purchase by himself. "An attorney may deal with a client as a stranger where the circumstances are not such as to put him under the duty of advising the client," but not otherwise; and the ground of the rule which requires him to prove that "the confidential relation has been determined, or the client put at arms' length, is the influence which arises from the position of attorneys; and I doubt much," he continues, "whether the confidential relation can be said to be determined at all, whilst the influence derived from it can reasonably be supposed to remain. * * If these transactions had taken place the day after the business of the sale by auction was at an end, could it have been said that the parties stood towards each other in any different relation from that in which they had before stood? Could the defendant in such a case have been absolved from the duty of advising Holman? I think clearly not. Does then the lapse of time between the auction and the defendant's purchase alter the case? It does not appear to me that it does. No other solicitor had in the mean time been employed by Holman; and the true state of the case appears to me to be, that there was not any cessation of the relation, but only a cessation of the circumstances which were necessary to call the relation into action. I may add, upon this part of the case, that it is not perhaps unworthy of remark, that in those cases where attorneys have been concerned in previous sales, there must, in some sense, be a continuance of the confidential relation between them and their clients. They must be bound, in any future dealings with the client as to the property which they have been employed to sell, to communicate any information respecting that property which they have obtained during their employment."

COPYRIGHT. AGREEMENT BETWEEN PUBLISHER AND AUTHOR.

Stevens v. Benning, 1 Kay & Johns, 168.

By a memorandum of agreement between an author and publishers, it was agreed that they should print, reprint, and publish his book, and that he should prepare it all before a certain day, and correct the proof-sheets, and superintend the printing thereof; and that the publishers should direct the mode

of printing, and should bear and pay all the expenses, and take all the risk of publishing; and out of the produce should first repay to themselves such expenses, and divide the profit equally between the author and themselves; and that, if all the copies should be sold and a new edition should be required, the author should prepare the same, and the publishers should print and publish the second and every subsequent edition of the work on the same terms; and that if all the copies of any edition should not be sold off within five years after the time of publication, the publishers should be at liberty to dispose of the remaining copies either by public auction or private sale, or otherwise, to close their account. After the publication of a first edition (in 1841), in pursuance of this agreement, one of the partners in the firm of publishers retired, and the remaining partner thereupon entered into a partnership with another person; and in 1844 the new firm published a second edition, revised by the author. In 1849 they published a re-issue of this edition; and in 1851 one of the partners became bankrupt. Subsequently, his assignees and the remaining partner conveyed to the plaintiffs all the copyrights of the firm. Another bookseller published a third edition of the work, edited by the author, who had no knowledge of the assignment. Upon these facts the ViceChancellor Wood held that the contract was a personal contract by the author, and not a contract for the assignment of his copyright; and that therefore the benefit thereof could not be assigned by the publishers. "The most," said his Honour, "that I could infer upon this contract, as to its equitable effect in favour of the publishers, if they were now before me, would be, that during its subsistence, they performing all the conditions on their part, the author would not be at liberty to transfer to any other person the right of printing and publishing this work, nor himself to conduct the publication of it through other hands."

This decision has been affirmed by the Lords Justices.

SOLICITOR WHO IS A TRUSTEE.-COSTS.

Broughton v. Broughton, 2 Sma. & Gif. 422.

The case of Cradock v. Piper (1 Mac. & G. 664) has been considered to have relaxed the rule, that a solicitor who is trustee shall not be allowed in any case to receive costs out of the trust estate. The case of Lincoln and Windsor (9 Hare, 158), however, decided by the Vice-Chancellor Turner, restored the rule to its old strictness. In the present case, a testator had employed a

solicitor, who was a member of a firm, to devise a scheme for the disposal of his estates, which was partly carried out during his lifetime. By his will, he appointed his wife, who was sole cestui que trust, and the solicitor, trustees thereof. It appeared that the widow had employed her co-trustee in the administration of the estate out of court, and that his employment was particularly beneficial to the estate. The present suit was instituted by creditors. The Vice-Chancellor Stuart reluctantly held, upon the authority of Lincoln v. Windsor, that the solicitor was entitled only to costs out of pocket. Within the last few days, his Honour's decision has been affirmed by the Lord Chancellor; and his lordship, in his judgment, referred to the observations of Lord Brougham in Maunsell v. Baine, a case recently decided in the House of Lords, in which Lord Brougham said that he never understood the principle of the decision in Cradock v. Piper-an observation in which the Lord Chancellor fully concurred.

PARTNERSHIP.-SPECIALTY DEBT.

Powdrell v. Jones, 2 Sma. & Gif. 305.

There were articles of partnership under seal, containing the usual covenant by the parties, to be true and just to each other in all their dealings, and by which each bound himself, his executors, &c., in the penal sum of 5,000l., for the due performance of the partnership articles; but there was no covenant for payment of the balance due on the settlement of the partnership accounts. On the death of one of the partners, he was found to be indebted to the firm in a much larger sum. The ViceChancellor Stuart held, that the express contract as to the amount of debt under specialty excluded any implication by which that amount could be enlarged as a specialty debt.

MARRIED WOMAN.-TRUSTEE AND CESTUI QUE TRUST.-
BREACH OF TRUST.

Brewer v. Swirles, 2 Sma. & Gif. 219.

A married woman, having an absolute power of appointment over property settled to her separate use, induced the trustees to lend the fund upon an unauthorized security. The fund was thereby lost, and she subsequently executed an appointment of the fund in favour of her infant children, who, by their next friend, filed a bill against the trustees. The Vice-Chancellor

Stuart held that the suit was not maintainable. He considered, though the appointor was under coverture, that so far as regarded the property in question, she must be regarded as a feme sole; and though she had not followed strictly the method prescribed in the settlement, that she had absolute power to deal with the property, and therefore she could not maintain the bill, and neither could her appointees.

RULE IN SHELLEY'S CASE.-RESULTING FREEHOLD.

Arnold v. Coape, Coape v. Arnold, 2 Sma. Gif. 311; S. C. 4 De G. Mac. & G. 574.

his eldest son,

A testator devised all his real estate to G. H., for ninety-nine years, if he should so long live, and subject thereto, to trustees and their heirs, for G. H.'s life, in trust to support contingent remainders; with remainder to the heirs of the body of G. H.; and, for want of such issue, remainder to his second son in like terms. By a codicil, after confirming his will, the testator devised his real estate to trustees for the payment of his debts, and to secure a jointure for his wife. It was held by the Vice-Chancellor Stuart, that the heirs of the body of G. H. took by purchase, and that no equitable freehold resulted to G. H., so as to attract the operation of the rule in Shelley's case, and create an estate tail in him. The LordChancellor affirmed his Honour's decision, and said that his understanding of the rule in Shelley's case had always been, that it applied only to the case of remainders created by the same instrument which creates the particular estate of freehold.

TENANT FOR LIFE. PERMISSIVE WASTE.

Powys v. Blagrave, 4 De G. Mac. & G. 448.

Courts of Equity have always declined to interfere against mere permissive waste, as it does in cases of wilful waste, on the ground that it would tend to harass tenants for life and jointresses, and that suits of the kind would be attended with great expense in depositions about the repairs; and therefore, in this case, the Lord Chancellor affirmed the judgment of the Vice-Chancellor Wood, refusing to make a tenant for life in possession accountable in equity at the instance of a remainderman for permissive waste.

LANDLORD AND TENANT.-PRIVITY OF ESTATE.

SPECIALTY DEBT.

Vincent v. Godson, 4 De G. Mac. & G. 546.

Wherever there is the relation of landlord and tenant, whether by lease under seal or by parol, rent ranks as a specialty debt; but in this case it was held that the right to treat it so is incident to tenure, and not to contract; that is, to privity of estate, and not to privity of contract; and the Court, therefore, would not apply the rule to the case of lands out of England.

VOLUNTARY ASSIGNMENT.

Beech v. Keep, 18 Beav. 285.

Courts of Equity will not constitute a cestui que trust under a voluntary instrument. But where a party has completely transferred stock, &c., though it is voluntary, yet the legal conveyance being effectually made, the equitable interest will be enforced by the Court. Such was the rule as stated by Lord Eldon in Ellison v. Ellison (6 Ves. 662). In Bridge v. Bridge (16 Bevan, 315), Sir John Romilly, M.R., remarking upon this rule, observed, "The question before me will depend more upon those cases where the donor professes to assign for the benefit of the donee some previously existing chose in action. On this subject," said his Honour, "some points are, I think, reasonably clear. If a person possessed of stock execute a declaration of trust of that stock in favour of a volunteer, he would, I apprehend, clearly constitute himself a trustee for the volunteer, and equity would execute the trust, and compel a transfer of the stock to the cestui que trust. But if the same person executed an assignment of the stock in favour of the volunteer, and no transfer of the stock took place, this, I apprehend, would be as clearly considered to be no more than an imperfect gift, in which the donor had not done all that it was in his power to do; and the donee would get no assistance from a Court of Equity to compel a transfer of the stock." Therefore, in this case, where some consols belonging beneficially to A for life, with remainder to B, stood in the name of two trustees, of the survivor of whom В was the representative, and voluntarily assigned the stock to A, but no transfer was made, his Honour refused either to declare her a trustee of the stock for A, or compel her to transfer it. "I admit," he remarked, "that there is a very thin distinction between an assignment for the benefit of a volunteer, and a declaration of trust in his favour, but it is one which is to be found in all the cases."

VOL. LIV. NO. CVIII.

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